Sub-rosa Uses and Limitations

Clarifying how the advanced capabilities that sub-rosa enables can be used in the claim investigative process.

September 2019

By William Zachry, Senior Fellow, Sedgwick Institute

This write-up is intended to provide insight into Sub-rosa, its uses and limitations, while also further clarifying how the advanced capabilities that sub-rosa enables can be used in the claim investigative process.

Introduction

The Latin phrase sub-rosa means “under the rose.” It also means secrecy and confidentiality. As it relates to workers’ compensation, Sub-rosa is the term best used to describe undercover investigations.

Sub-rosa is a surveillance investigation which operates under the radar of the public. It usually consists of having an investigator go into the field, observe and film an injured worker performing physical activities. This activity may be inconsistent with the physical limitations described to (or by) the treating physician or the information provided during a deposition of the injured worker.

There are strict privacy laws at the Federal, State and local jurisdiction levels, which limit the filming of people in their homes or in venues where privacy can be assumed. There are also strict laws forbidding entrapment (formally known in the industry as rope jobs).

It is easy to believe that doing Sub-rosa is in direct conflict with the employee advocacy process. However, employee advocacy does not mean that employers should pay for fraudulent claims or overpay for benefits for which they were not responsible. Sub-rosa is one of the tools that can be used, in a targeted manner, to make sure that employers (insurance carriers) only pay the benefits for which they are responsible.

Sub-rosa can help determine if the worker is “double dipping,” which refers to someone working while he/she is receiving temporary disability benefits. The results from Sub-rosa have also been used to reduce potential Permanent Disability exposure, which typically takes place when information from a doctor’s report or the injured worker’s deposition indicates that the stated permanent disability or physical restrictions, greatly exceeds the likely result of the injury or medical treatment. Sub-rosa can also be used to help manage other exposures, such as Medical Care, if the injured worker’s physical activity is believed to exceed the physical limitations prescribed by the doctor.

Occasionally, Sub-rosa has even been used to help determine if the injury is compensable. However, Sub-rosa typically cannot determine if an injury actually took place.

Sub-rosa can also help identify claims that are completely fraudulent. This solves the problematic situation that asks employers to pay for benefits due to injuries or disabilities they did not cause. Allowing fraud to exist increases system costs and undermines the integrity of the system.

Jurisdictions throughout the United States have different rules and regulations concerning the acceptance and use of Sub-rosa. This even pertains to local court rules concerning when the workers (or their attorneys) may have to be notified of the existence of Sub-rosa film or have access to copies of the results of the investigations.

To create attorney client privilege, which insures legal confidentiality, in most jurisdictions, the investigator must work directly under the instructions and control of an attorney.

Over the past few years, the camera quality and technology (remote controlled video cameras and drones with video capability) has changed dramatically. With the new technology, it can be easy for an inexperienced investigator to breach the laws concerning privacy. Therefore, the investigator must be aware of the latest laws, rules and regulations and limitations on their activity concerning privacy and entrapment.

With today’s technology it is easy to share data files containing the results of the Sub-rosa. However, with the ease of sharing of the files it may result in accidently inappropriate sharing, which may shatter any privilege for confidentiality of the Sub-rosa results.

How to maximize effectiveness of Sub-rosa

Prior to attempting Sub-rosa, the results of any investigation should be carefully planned.

It is important to treat the Sub-rosa Partners as a professional partner in the administration of the claims process. Quality investigators know the best days, times and locations to reach success. Skilled Sub-rosa vendors will usually obtain better results. Though there may be a potential conflict, they should be involved in the decision to do Sub-rosa and should understand the plans for how their work product will be used.

Employers, defense counsel and claims handlers should also understand the operational and legal limitations of Sub-rosa. Even with the best information, not all Sub-rosa efforts turn out successful.

It’s important to recognize that there are limitations to using Sub-rosa. For example, Sub-rosa will not be able to determine, the exact location of where an injury took place.

The reason for limited results from sub-rosa, is that it often begins with unrealistic expectations. These can be compounded by inappropriate instructions between the claims defense team and the Sub-rosa partner. Sub-rosa should not be used because the claims handler, defense counsel or employer is angry with the worker for having had the injury, or how the worker has behaved during the claims process.

Failures in Sub-rosa also take place because some sub-rosa aggregators having limited the necessary and appropriate communication between the front-line investigators and the claims team. Other than confidentiality there should be few limitations of communication between the Sub-rosa vendor and the claim handler.

The Basics

The process for determining if Sub-rosa is needed, should be through creating a consensus of opinions by the front-line examiner, the claims supervisor, the defense counsel and, if appropriate, an employer representative. There are differing opinions on including medical professionals in the conversation on the need for Sub-rosa, because some physicians believe that it would be their duty to tell the worker if they knew that sub-rosa was being done

The examiner and the defense counsel should review the current state of the claim, review the exposures and create an estimate of how much a quality Sub-rosa result might result in savings on the claim, as well as determine how much the Sub-rosa will potentially cost. At this time there should also be a discussion on potential impacts a positive Sub-rosa finding may have on the claim, and even other claims by the same employer.

Use of Sub-rosa

One of the most important strategies in claims management is determining the best use of the Sub-rosa film. Early disclosure, or the inappropriate use (or misuse) of Sub-rosa films, can result in a waste of effort and incur significant expenses involved in obtaining the films.

Successful Sub-rosa can be used by showing the films to the applicant, defense, AME doctor to refute his/her findings or to change his/her mind on the nature and extent of PD. It can also be shown at the court or in a deposition to refute the credibility of the injured worker. Occasionally, having a Sub-rosa investigator show up at a hearing or deposition will result in faster claims settlements, without necessarily having to show any films.

Sub-rosa has also been used to confirm the nature and extent of disability as outlined by the applicant medical reports. This result may justify higher reserves and payments of disability on that claim.

Check list for Success

Consider all claims as potential for Sub-rosa, but only pick the claims where there is a good chance of success, and where the anticipated savings will justify the cost.

Do Sub-rosa for the right reasons. Be dispassionate in the deployment of the tool. A vendetta is not a good reason to do Sub-rosa. Do not do it as retribution for litigating the claim or because the worker has been problematic with the claims staff or has been a problematic employee.

Do a realistic analysis of the cost vs potential benefits.

Include in the calculation more than one day in the field. If successful, a second day will usually be required. (I have seen workers testify in court that “I was having a great day, but the next day I was completely incapacitated.”) A second day of Sub-rosa usually helped stop that mischief.

Identify and eliminate communication barriers between the front-line claim handlers, the defense attorneys and the Sub-rosa partners.

Allow as few as possible to know that Sub-rosa will be attempted. Some employers HR departments, or employer front-line supervisors believe that Sub-rosa is an invasion of privacy and do not approve of the use of the Sub-rosa process. They may warn the injured worker if they are aware that it will happen.

Do not expect success on every attempt.

To maintain appropriate privilege, the instructions and direction to the investigator should come through the Defense attorney.

Have a plan on how to use the results and how you will be able to appropriately maintain privilege of the results. For example, will you show the results to the doctor, or will you show the results at court?

The Sub-rosa Partner must have the proper investigator licenses and insurance.

The Sub-rosa Partner should have local knowledge about the physical locations which will be utilized.

The Sub-rosa Partner should have the proper equipment and tools to do the job well. A Bell and Howell 16MM camera once was the state of the art, but now is just an expensive paperweight.

The Sub-rosa Partner should have contacts with the local police and safety organizations to avoid problems when a “Strange Car” shows up in a neighborhood.

Do not put artificial limit the investigator’s time for a day in the field. “Try a half day” is usually a formula for wasting money.

Make sure that your Sub-rosa partner knows the claim and understands how their work will be used. This will allow them to better understand the work that needs to be done.

As much as possible, make sure that the Sub-rosa Partner knows the physical layout of the venue to be filmed.

Prior to field work, pay for the investigator do a comprehensive desk background search including Google and all public social media. Sometimes the videos which are posted on public media will be all that you need.

Make sure that the Sub-rosa investigator has a recent picture of the Injured worker as well as the last known physical address (usually this is in the doctor’s first of injury report).

Talk to the front-line supervisor and co-workers to get as much background information as possible about the worker. Relay this information to the Sub-rosa Partner.

Coordinate Sub-rosa days with days of known activity (doctors’ appointments, depositions, pre-holidays, known family activity such as children sports events).

In some jurisdictions, (with the right claimant) the first day of baseball season or hunting season tend to be very successful.

Extreme cold and extreme hot days tends to limit public activity. Unless you know that the person will be shopping or going to the doctor these are “why bother” days. An exception to this is the need to shovel snow to get the car out of the garage after a big snow storm.

If the Injured worker is suspected of working somewhere else, make sure the Sub-rosa starts early enough to catch the person leaving for work (This is particularly true for people who have a long commute or for those working in the construction trades).

If the worker lives in a very rural area attempting Sub-rosa can be problematic.

Workers who live in secure apartment buildings or live with multiple families in a single home can be problematic.

Workers who use motorcycles for transportation can be problematic.

Workers who do not have cars or who only use public transportation can be problematic.

Claims which have had prior Sub-rosa which was revealed can be problematic.

Weekends can be better than week days.

Summer holidays can be a great time to do Sub-rosa.

When the file is closed, do a post-mortem on the effectiveness of the Sub-rosa process. What worked? What did not work? What would you do different the next time? Include the Sub-rosa vendor in the post-mortem so everyone can learn from the successes and failures. Give feedback to the Sub-rosa Partner on what they did well and what did not work.